by Jonathan A. Nelson
When an adult is unable to take care of his or her own interests, whether because of aging, catastrophic injury, developmental impairments, or otherwise, a guardianship may be required to allow another person (the guardian) to exercise the rights of the incapacitated adult (the ward) on the ward’s behalf. Virginia differentiates between a guardianship of the ward’s person and a conservatorship of the ward’s assets, but for ease of discussion I will just use the term ‘guardian’ here.
A guardianship is a significant and serious step, involving a loss of rights for the incapacitated adult and is sometimes a blunt instrument, requiring the loss of many rights in order to address a narrower problem. There are procedural safeguards built into the legal process, and although they may seem unnecessary in circumstances where everyone has the ward’s best interests at heart, they are also there for other important reasons, particularly allowing the incapacitated adult to participate in the process as much as they can, and catching the rare abuses of the system. There are also significant gray areas, such as when the ward’s condition has varying severity, symptoms, or speed of progression.
Two important tools for avoiding unnecessary guardianships are powers of attorney for financial matters and medical directives for medical decisions, each allowing an agent to act on behalf of the principal in that subject matter. These documents are important enough that the Virginia Code requires, before a guardianship can be granted, inquiry as to whether the documents exist and are sufficient. The principal must have executed these documents before capacity was lost.
For many individuals and circumstances, these documents are sufficient – the agent can use them to manage investments, pay bills, contract for skilled care, and (with certain safeguards) consent to major surgery or authorize a Do Not Resuscitate order. Because these documents do not take away any rights of the principal but instead allow both principal and agent to work together, they can be especially helpful where some decisions are beyond the abilities of adult (such as filing a tax return) but others are not (such as writing checks). These documents also allow greater autonomy by allowing the principal to select his own preferred agents rather than a judge making the final decision, as in a guardianship.
There are times, however, when a power of attorney or medical directive may not be enough to prevent an incapacitated adult’s condition from causing him or her to take actions adverse to himself or herself. If mom has the technical ability to still write checks and mail letters, but has lost the filter to avoid sending money to the nice man from Bulgaria she met online, a guardianship may be the only way to keep her from losing the assets she needs to live on. Some conditions require a guardian to be able to admit the incapacitated adult for medical or mental care over the protest of the ward.
Dealing with incapacity at any stage is never easy, but a guardianship is not usually the first choice. If you are wondering about options for you or a loved one, a good first step is to consult with an attorney who practices in estate planning and guardianships in your state.
Virginia attorney Jonathan A. Nelson practices in estate planning, probate, trust administration, business formation, and estate and trust litigation, and brings nearly 20 years of experience resolving conflicts, negotiating settlements, vigorously advocating in the courtroom, and navigating compliance matters. He uses a personal touch and extensive legal knowledge to ensure that the particular needs and interests of each client are reflected in the legal services they receive.
The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.